PMBR Flash Cards - Criminal Law - 2007

Torts
Property Evil
Contracts . Constitu
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143 Felony/Misdemeanor
Distinguish between a
felony and a misdemeanor.
M ULTISTATE SPECIALIST
MULTISTATE
143
ANSWER
A felony is a crime punishable by death or by
imprisonment exceeding one year. At common
law, burglary, arson, robbery, rape, larceny,
kidnapping, murder, manslaughter, and may-
hem were considered felonies. A misdemeanor
is a crime punishable by imprisonment for less
than one year or by a fine only. At common
law, crimes not considered felonies were
deemed misdemeanors.
•EXAMINATION TIP: Remember that burglary
requires that the defendant enter with intent to
commit a felony or larceny. Similarly, felony
murder requires an inherently dangerous
underlying felony.
posebste
MU LTISTATE SPECIALIST flash cards
144 Specific Intent Crime
Describe a specific intent

crime.
MULTISTATE
144
ANSWER
A specific intent crime involves more than the
objective fault required by merely doing the
proscribed actus reus. In addition, a specific
intent includes an actual subjective intent
to cause the proscribed result.
• EXAMINATION TIP: Specific intent may be

indicated by the use of such words as inten-
tionally, knowingly, purposely, or willfully.
• EXAMINATION 1' P: The following are specific

intent crimes:
— solicitation
— conspiracy
— larceny
— larceny by trick
— false pretenses
— embezzlement
— forgery
— burglary
— assault
— robbery
— intent to kill murder
— voluntary manslaughter
pritain
MULTISTATE SPECIALIST flash cards
145
Describe a general intent

crime.
i
4
possbie
MULTISTATE SPECIALIST
145
ANSWER
A general intent crime requires merely an
intent to do the proscribed actus reus. Negli-
gence or recklessness is sufficient for general
intent crimes. The concept of "motive" is sub-
stantively immaterial to the determination of
intent to commit a criminal act.
*EXAMINATION TIP: Criminal negligence

involves conduct creating an unreasonable
risk of harm, viewed by the objective test (tort
standard), plus either a greater risk of harm
or a subjective awareness of the risk by the
defendant or both (i.e., recklessness).
•EXAMINATION TIP: The following are gen-

eral intent crimes:
— rape
— battery
— kidnapping
— false imprisonment
posehe
MUL7 1ST ATE SPECIALIST flash cards
146 Malicious Crime
Describe a malicious
crime.
MULTISTATE
146
ANSWER
To be guilty of a malice crime, the defendant
must act with a reckless disregard of a high
risk that harm will occur.
EXAMPLE
X drives through a busy financial area at 5:05 p.m.
Although the speed limit there is 20 mph, he drives
80 mph. The roads are crowded with people walking to
the subway. If X hits a pedestrian and kills her, he will
be guilty of a malicious crime (depraved heart murder).
•EXAMINATION TIP: The following are mali-

cious crimes:
— depraved heart murder
— arson
possbe
147 Strict Liability Crime
Describe a strict liability

crime.
po LTI ATE
ATE SPECIALIST
147
ANSWER
Under strict liability crimes, culpability is
imposed on a defendant for doing the act
which is prohibited by statute. No particular
mental state is required for strict liability
crimes.
XAMINATION TIP: A reasonable mistake of

fact is no defense to a public welfare offense
such as sale of liquor to a minor.
• EXAMINATION TIP: Strict liability statutes

have generally been held constitutional
where the penalty is minor and excludes
imprisonment.
• EXAMINATION TIP: The following are strict

liability crimes:
— regulatory offenses (traffic violations,
vehicle offenses, administrative statutes)
— public welfare offenses (regulation of
firearms, food and drugs)
- morality crimes (statutory rape, bigamy)
psis _
MU LTISTATE S P ECIALIST flash cards
148 Actus Reus
Describe when non-action

constitutes the actus reus
portion of a crime.
148
ANSWER
For non-action to constitute the actus reus portion of a
crime, the defendant (1) must have been under a legal duty
to act, (2) must have actually (or should have been) aware
of the facts which obliged him to act, and (3) must have
had the capability to act in the manner required.
Such a legal duty to act may arise in the following ways:
(1) by statute (e.g., failure to file a tax return); (2) by con-
tract (e.g., failure of a lifeguard, a nurse, or a guide on a
hiking or river-rafting expedition to rescue); (3) where
there is a pre-existing dependency (e.g., a parent for a
child, a spouse for a spouse); (4) where a voluntary under-
taking is begun (e.g., unreasonable abandonment of a res-
cue which could worsen victim's plight is sufficient even if
done by a good samaritan); or (5) where the defendant
created the victim's peril (e.g., D pushes V into the path of
an oncoming car which D did not see, then fails to take
steps to assist V).
EXAMPLES
X, a passerby, sees Y (a 2-year old baby) drowning in an apartment
house jacuzzi. Although X can save Y without any risk of harm to
himself, he neglects to do so. Since X had no legal duty to Y, no
homicide has occurred.
To collect the insurance proceeds, X sets her summer home afire.
Unbeknownst to X, her 17-year old daughter (V) had gone to the
cabin to relax. As X was returning to her car, she notices someone
from the nearby river frantically waving her arms. The person in the
water was V, who, as a consequence of stomach cramps, was drown-
ing. Since it was evening, X could not discern that V was the swim-
mer. X, fearing that if she saved the swimmer that individual might
identify her, ignored V's gestures. V drowned. Although a parent has
an obligation to rescue her minor children, X is not culpable of mur-
der. She was unaware that the individual in trouble was V. Even if X
was aware that the swimmer was V, the prosecution would also have
to prove that X was capable of rescuing V.
•EXAMINATION TIP: These same situations give rise to a

duty to act under tort theory!
plashes

149 Concurrence of Mens Rea and
Actus Reus
Describe the requirements

of concurrence of the
mens rea and actus reus
elements of a crime.
pmbie
149
ANSWER
It is not only necessary that the defendant's
criminal intent occur at the time he commits
the criminal act, but the mental state should
also actuate, or put into action, the act or
omission.
EXAMPLES
X breaks into Y's home to recover his (X's) television set
(which X had loaned to Y). If, once inside, X sees and
decides to steal Y's gold watch, X is guilty of larceny.
However, no burglary has occurred. X did not enter Y's
home intending to commit a larceny (i.e., there was no
intent to take the property "of another").
X implants poison into a cupcake which she knows will
be eaten by Y. Before the item is consumed, X changes
her mind. She tries frantically to warn Y, but is unable to
do so. Although X did not desire Y's death when the
cupcake was eaten, X has committed murder.
•EXAMINATION TIP: The mens rea and actus

reus elements concur when the factors which
ultimately cause the result are set in motion
with the requisite mens rea.
MULTISTATE

flash cards

15 0 Malum Prohibitum/Malum In Se
Distinction
Describe the difference

between a malum in se and
malum prohibitum crime.
pie
mb
15 0
ANSWER
A malum in se ("bad in itself') crime is one
which is inherently wrong (i.e., larceny, rob-
bery, battery, etc.). A malum prohibitum
offense is conduct which has been made
wrongful by statute (i.e., gambling, exceeding
the speed limit while driving, etc.).
EXAMPLES
X and Y become involved in an altercation. X pushes Y
(a battery) to the ground. The latter dies when she hits
her head on a rock. Since battery is a malum in se
misdemeanor, X would be guilty of involuntary man-
slaughter under the misdemeanor-manslaughter rule.
X is traveling at 42 m.p.h. in a school zone (the maxi-
mum speed in these areas is 25 m.p.h.). He hits an
elementary school student, killing her. X would not
be guilty of involuntary manslaughter under the
misdemeanor-manslaughter rule. Exceeding the speed
limit is a malum prohibitum (rather than a malum in se)
crime. X might, however, be culpable of involuntary
manslaughter (for acting in a criminally negligent
manner).
posibie
151 Mens Rea for Murder
Describe the various mens

rea requirements for
murder.
pebip
/MULTISTATE SPECIALIST
151
ANSWER
The mens rea for murder is satisfied where:
(1) The defendant killed the victim, with intent
or premeditation, or
(2) The defendant acted intending to cause the
latter serious bodily injury (but did not intend
to kill), or
(3) The defendant consciously disregarded a
risk which posed a high probability of death
or serious injury to other human beings (i.e.,
the defendant acted wantonly or with a
"depraved heart"), or
(4) The felony-murder rule is applicable.
EXAMPLES
X shoots at Y, a football player on the rival team, while
Y is running in practice. Although X merely attempts to
wound Y, the bullet hits the latter in the chest (killing
him). In prosecuting X for murder, the prosecution
could contend that (1) there was a substantial certainty
that X's shot would not be totally accurate (and so he
intended to cause Y serious bodily harm), or (2) X acted
wantonly.
One evening, X shoots into the first floor of Y's home.
X merely wanted to frighten Y. X assumed that Y was
upstairs (the only area where lights were lit). However,
Y, who was walking to her kitchen, was hit by the bullet
and died. X is probably not guilty of murder (i.e., there
was no intent to physically harm Y nor was there a "high
probability" of risk that Y would be killed).
•EXAMINATION TIP: Remember that intent

was not necessary for three out of four types
of common law murder!
plumb.*
pub.* SPECIALIST flash cards
152 Intent to Kill Murder
Describe intent to kill

murder.
MULTISTATE
152
ANSWER
Conduct where the defendant consciously
desires to kill another person or makes the
resulting death inevitable (absent justification,
excuse, or mitigation to voluntary manslaugh-
ter) constitutes an intent to kill. If a death
results, this will be an intent to kill murder.
EXAMPLE
X decides to kill Y. He calls Y and asks her to meet him
at their favorite coffee shop at 4:00 p.m. X arrives at 3:50,
orders coffee, and slips poison into Y's cup. Y drinks the
coffee and dies. X will be guilty of intent to kill murder.
• EXAMINATION TIP: Under the "deadly

weapons doctrine," an inference of intent to
kill is raised through the intentional use of
any instrument which, judging from its
manner of use, is calculated to produce
death or serious bodily injury.
• EXAMINATION TIP: Intent to kill murder is a

specific intent crime.
potable
MULTISTATI •PICIALIST flash cards
153 Serious Bodily Injury Murder
Describe intent to commit

serious bodily injury
murder.
pimbv
'MULTISTATE SPECIALIST
153
ANSWER
An intent to commit serious bodily injury mur-
der is an unintentional killing proximately
resulting from an act intended to cause great
bodily injury, absent justification, excuse, or
mitigation.
EXAMPLE
X is furious with Y, who has spurned his romantic
advances. He waits outside of Y's home with a rifle.
When she emerges, he shoots her in the knee "to teach
her a lesson." If Y collapses and bleeds to death, X
will be guilty of intent to commit serious bodily injury
murder.
•EXAMINATION TIP: Intent to commit serious

bodily injury murder is a general intent
crime.
ffintstfor
154 Depraved Heart Murder
Describe depraved heart

murder.
154
ANSWER
Depraved heart murder is an unintentional
killing resulting from conduct involving a wan-
ton indifference to human life and a conscious
disregard of an unreasonable risk of death or
serious bodily injury, absent any defense
negating defendant's awareness of the risk.
EXAMPLE
X wants to try out his new gun. Not intending to kill
anyone, he shoots his gun into a crowded room. He
inadvertently hits a person standing in the room, killing
her. X will probably be guilty of depraved heart murder.
• EXAMINATION TIP: Depraved heart murder

is a malicious crime.
• EXAMINATION TIP: Unlike involuntary

manslaughter, depraved heart murder
involves extremely negligent conduct
that is of a higher degree than ordinary
recklessness.
prisbite

155 Felony-Murder Rule
Describe the felony-

murder rule.
poisbie
155
ANSWER
Felony murder is an unintentional killing
proximately caused during the commission or
attempted commission of an independent and
inherently dangerous felony.
EXAMPLES
While robbing a liquor store, D (the felon) accidentally
drops his gun to the floor. It discharges and kills V (a
customer at the premises). D is culpable of murder
under the felony-murder rule.
D robs the XYZ Bank. He also cuts the telephone wires
at the Bank to enhance his getaway time. After D
departs, one of the tellers walks across the street to tele-
phone the police. While returning to the bank, she is
struck by a car. The felony-murder rule would not be
applicable. The nexus between the robbery and D's
death is too tenuous.
• EXAMINATION TIP: Since a criminal is "in

the course" of a crime until she reaches a
"safe haven" the felony-murder rule is often
applied where someone is killed while pursu-
ing a fleeing felon.
• EXAMINATION TIP: Remember that felony
murder requires an inherently dangerous
underlying felony. At common law, there
were (1) b urglary, (2) arson, (3)rape,
(4) robbe , (5)kidnapping (`BARRK").
10°
156 First-Degree Murder
Describe the statutory

classification of
first-degree murder.
pmbit*
156
ANSWER
Under modern statutes, first-degree murder
includes intent to kill murder committed with
premeditation and deliberation, felony murder,
and, in some jurisdictions, murder accom-
plished by lying in wait, poison, or torture.
• EXAMINA'FION TIP: If the murderer does any

reflection or premeditation (even if the reflec-
tion is cursory and brief), he may be guilty of
first-degree murder.
•
157 Second-Degree Murder
Describe the statutory

classification of
second-degree murder.
pinnibie
157
ANSWER
All murder that is not first-degree murder is
second-degree murder.
•EXAMINATION TIP: Remember that, at com-

mon law, there were four types of common
law murder but no classifications such as
first-degree and second-degree. If the bar
examiners wish to test you on statutory clas-
sifications on the MBE, they will give you a
statute. For state essays, however, you will
need to know your jurisdiction's statutory
classifications.
p br•
158 Voluntary Manslaughter
Describe the circumstances

which reduce murder to
voluntary manslaughter.
POSOMP
15 8
ANSWER
A prosecution for murder will be reduced
to voluntary manslaughter in the following
circumstances:
(1) Mistaken justification. Where the defen-
dant commits a homicide under circumstances
which he reasonably, but nevertheless mistak-
enly, believes to be justified.
(2) Provocation. Where the defendant was act-
ing under adequate provocation. This occurs
where: (1) a reasonable person must have
entertained the thought of killing under the
circumstances, (2) the defendant must have
actually been provoked, (3) a reasonable per-
son's anger would not have subsided by the
time the homicide actually occurred, and
(4) the defendant's anger must not have actu-
ally subsided when the homicide actually
occurred.
(3) Diminished Capacity. Where the defen-
dant's capacity was diminished as a conse-
quence of a mental disease (not rising to the
level of insanity).
• EXAMINATION TIP: Diminished capacity is a
minority viewpoint.
potable
159 Involuntary Manslaughter
Describe the
circumstances which
constitute involuntary
manslaughter.
+MULTISTATE SPECIALIST
159
ANSWER
Involuntary manslaughter is an unintentional killing resulting
without malice aforethought caused either by criminal negli-
gence or during the commission or attempted commission of an
unlawful act. There are three types of involuntary manslaughter.
(1) Criminal negligence involuntary manslaughter. Criminal
negligence requires that the defendant's conduct creates a high
degree of risk of death or serious injury beyond the tort standard
of ordinary negligence. Gross negligence or ordinary reckless
conduct is required, but the majority of jurisdictions do not
require that the defendant be consciously aware of the risk
created.
(2) Misdemeanor Manslaughter. This is an unintentional killing
occurring during the commission or attempted commission of a
misdemeanor which is malum in se (wrong in itself, rather than
because of legislative proscription — includes all felonies,
breaches of the peace, and crimes that outrage public decency).
(3) Non-dangerous felony manslaughter. This type of involun-
tary manslaughter involves a felony which is not of the inherently
dangerous type required for felony murder.
EXAMPLES
X, without provocation, pushes Y. Y's head strikes the edge of a
heavy wooden table, killing him. Since battery is a malum in se
misdemeanor, X is guilty of involuntary manslaughter under the
misdemeanor-manslaughter rule.
While driving his car at a speed of 42 m.p.h. through a school
zone, X accidentally struck and killed Y. A speed limit of 25
m.p.h. exists in such areas. If X's conduct is viewed as criminal
negligence, he is guilty of involuntary manslaughter. (In this
instance, the misdemeanormanslaughter rule would not be appli-
cable. Exceeding the speed limit is a malum prohibitum, rather
than malum in se, crime.)
• EXAMINATION TIP: Whereas limitations do exist regarding
the nature of the unlawful act and causation between the act
and the killing, the malum in se misdemeanor for misde-
meanor manslaughter need not be independent from the cause
of death, unlike in felony murder.
• EXAMINATION TIP: Death resulting from a malum pro-
bibitum can only be sufficient for involuntary manslaughter
when the killing is either a foreseeable consequence of the
unlawful conduct or amounts to criminal negligence.
potable
160 Rape
Describe the crime of

rape.
possimp
„M...LTISTATE SPECIALIST
160
ANSWER
Forcible rape occurs where the defendant has
made the slightest sexual penetration of the
vagina of a female, other than his wife, with-
out her consent. (Some states also require
independent corroboration of the fact of inter-
course or the utmost resistance by the victim.)
EXAMPLES
X, who is married to Y, restrains Y while she is raped by
Z. X is vicariously culpable for forcible rape under con-
spiracy or aider and abettor principles.
X promises Y that he will give her 100 shares of his XYZ
stock, if she will have intercourse with him. X, in fact,
owns no XYZ stock. Y's consent is valid (i.e., she knew
that she was consenting to intercourse). However, X
(a doctor) advises Y that he is going to perform an oper-
ation upon her with medical instruments, but instead
personally penetrates her vagina, a forcible rape has
occurred.
• EXAMINATION TIP: A husband can be culpa-

ble of forcible rape.
• EXAMINATION TIP: Consent obtained
through fraud is ordinarily valid.
pintaboo
161:awry Rape

statutory rape.
b
MULTISTATE
161
ANSWER
Where a female is under the statutorily pre-
scribed age of consent (usually 16), an act
of intercourse constitutes rape despite her
consent.
EXAMPLE
X, who is 30 years old, meets Y in a bar. Y tells him that
she is 20 years old. The two enjoy talking, and eventu-
ally they go back to X's home, where they have consen-
sual sexual intercourse. If it turns out that Y is only 16
years old, X will be guilty of statutory rape despite his
mistake about her age.
*EXAMINATION TIP: A defendant's mistake

as to the age of the victim is generally no
defense to statutory rape.
pimaboo
MULTISTATII SPIICIALIST flash cards
162 Burglary

burglary.
162
ANSWER
A burglary occurs where the defendant, in a
trespassory manner, breaks and enters into the
dwelling house of another, at night, with the
specific intention of committing a felony or lar-
ceny therein.
EXAMPLES
X, who is standing outside of Y's home, sees Y asleep in
his bed. She shoots at him through a bedroom window
(shattering the glass in the process). X has committed a
burglary. (She is probably also guilty of attempted
murder).
X believes that Y owns a Picasso painting (a fact which
Y denies). One evening, X enters Y's home through a
closed (but unlocked) backdoor to confirm his suspi-
cions. No burglary has occurred (i.e., X did not intend to
steal the painting).
• EXAMINATION P: A "breaking" occurs when-

ever there has been the slightest movement of
any part of the structure. Thus, opening a win-
dow or unlocked door would suffice. Breaking
may also be achieved by a constructive break-
ing, where entry is made without consent (even
through an open door) or gained by fraud, mis-
representation of identity, or intimidation.
• EXAMINATION TIP: Structures within the cur-
tilage of a home are ordinarily considered part
of another's "dwelling house." If the occupant
habitually sleeps in a structure, it is usually
viewed as a dwelling house (even though, for
example, the lower floor of a 2-story structure is
used as a market).
potable
163 "Entry" Requirement
Describe the "entry"

requirement for burglary.
pwabv
163
ANSWER
There are several rules related to the entry
requirement for burglary.
(1) Open door. Entry through an open door
where the defendant later opens an inside
closet door intending to steal is sufficient.
(2) Entry of defendant's person. Entry is
achieved by placing any portion of the body
inside the structure.
(3) Insertion of a tool. Insertion of a tool is
sufficient for an entry if it is used to accom-
plish the felony, but insufficient if it is used
merely to gain entry (inserting a tool merely
to unlock the door, as opposed to shooting a
bullet through a window intending to kill the
victim).
(4) Entry into surrounding area. Entry into
the curtilage, structure or area immediately
surrounding the dwelling is sufficient.
EXAMPLE
X wants to steal some precious artwork from Y's home.
At nighttime, he places his hand through a window and
grabs a priceless lithograph from the wall, pulling it out
to where he is standing. X has entered Y's home for pur-
poses of a burglary.
• EXAMINATION TIP: Breaking into a truck or

safe, or breaking to exit, rather than to gain
entry, is insufficient for an entry.
ptit ase
164 Arson

arson.
posibma
/ LTISTATE SPECIALIST
164
ANSWER
Arson occurs where the defendant has
maliciously (i.e., intentionally or recklessly)
burned the dwelling house (modernly, any
structure) of another.
EXAMPLE
X breaks into a barn owned by Y and sets fire to the lat-
ter's tools. If the structure was within the curtilage of Y's
home, the "dwelling house" element would be satisfied.
However, no "burning" has necessarily occurred.
• EXAMINATION TIP: The burning element is

usually satisfied by an explosion (i.e., blow-
ing a safe open constitutes arson in many
states). Mere smoke discoloration does not
satisfy the "burning" element.
• EXAMINATION TIP: A structure which is
utilized for both commercial and residential
purposes (i.e., the first floor is used as a mar-
ket, but the second floor is inhabited) ordi-
narily constitutes a "dwelling house" for
purposes of arson.
• EXAMINATION TIP: Burning personal prop-
erty within a house would constitute mali-
cious mischief (rather than arson).
*EXAMINAI1( os, 1 P: Some part of the struc-
ture (i.e., the floor, a ceiling, a wall or the
roof) must at least be charred.
potable
MULTISTATE
SPECIALIST flash cards
165 Larceny

larceny.
pmbse
165
ANSWER
A larceny occurs where the defendant, in a
trespassory manner, takes and carries away
the personal property of another, with the spe-
cific intention to permanently deprive the latter
of it.
EXAMPLES
X, gives Y, a minor employee, a watch to deliver to Z. If
Y later decides to abscond with the item before reaching
his destiny, a larceny has occurred.
Y gives an item to X to deliver to X's employer, Z. If X
brings the good to Z, and then converts it, a larceny has
occurred. However, if X decides to steal the item on his
way back to Z's premises, no larceny occurred. X already
had possession of the item. X may, however, have com-
mitted embezzlement.
• EXAMINATION TIP: One can commit a

larceny against his own property, by taking
it from someone who has a superior right to
the item (i.e., a lessee, bailee, etc.).
• EXAMINATION TIP: A minor employee who

receives an item from his employer for deliv-
ery to another only has "custody" of the good
(i.e., it is still in the "constructive" possession
of his employer).
flash cards
166 "Permanently Deprive" Element of
Larceny
Describe the "intent to

permanently deprive
another of her property"
element of larceny.
pse
sub
166
ANSWER
The "intent to permanently deprive another of
her property" element of larceny is satisfied in
the following instances:
(1) loss or destruction of the item is substan-
tially certain to occur from the defendant's
conduct,
(2) the defendant pawns the item (even
though he intends to redeem and return it to
the rightful owner), or
(3) the defendant intends to keep or sell the
item.
EXAMPLES
To punish X for not asking her to the prom, Y puts X's
television set on the sidewalk while the latter is at work.
The item is subsequently taken by a stranger. Since loss
of the television was substantially certain to occur as a
result of Y's actions, Y is probably guilty of larceny.
X "borrows" Y's gold watch. He pawns the item to
obtain a $500 loan. Although X intends to redeem and
return the watch to Y when he has enough money, the
uncertainty as to this prospective event results in X being
guilty of larceny.
X loans $500 to Y. When Y fails to repay the obligation,
X believes (albeit incorrectly) he may legally exercise
self-help to appropriate property of approximately simi-
lar value from Y. If X took Y's horse (valued at about
$500), X would not be guilty of larceny. Under these cir-
cumstances, X lacked the specific intent to take the per-
sonal property of "another."
pititibit*

167 Larceny by Trick

larceny by trick.
potable
167
ANSWER
Larceny by trick is a form of larceny whereby
the defendant obtains possession of the per-
sonal property of another by means of a repre-
sentation or promise that he knows is false at
the time he takes possession.
EXAMPLES
X asks Y if he can borrow the latter's car for a short trip to
the local grocery. In fact, X intends to abscond with the
chattel. If Y accedes to X's request and the latter drives
the vehicle from its parking place, X is guilty of larceny
by trick. X obtained possession of the item by fraud.
X hands Y, her employee, an expensive ring. She
instructs him to deliver it to Z. Halfway to Z's premises,
however, Y decides to abscond with the item. Y has not
committed larceny by trick, since he did not gain posses-
sion of the ring by fraud. If the item was still in X's con-
structive possession (i.e., Y was a minor employee), he
committed larceny. If Y is viewed as having "possession"
of the ring (i.e., he was a trusted employee), he is proba-
bly guilty of embezzlement.
pitsaihnte
MULTISTATS SPECIALIST flash cards

168 False Pretenses

false pretenses.
pitsabse
"MULTISTATE SPECIALIST
168
ANSWER
The crime of false pretenses consists of (1) a false rep-
resentation of (2) a present or past material fact by the
defendant (3) which causes the victim to pass title to
his property (4) to the defendant (5) who knows his
representation to be false (6) and intends thereby to
defraud the victim.
EXAMPLES
X gives Y a check for $500 to purchase the latter's car. X
knows, however, that he has insufficient funds in his bank
account to cover the check. X is guilty of false pretenses. He
obtained title to Y's car via deceit.
A offered to sell B a watch for $50, claiming it is worth $100. If
A knows it is actually worth only $50 and accepts B's payment
of $50, A has committed false pretenses (i.e., B intended to part
with title to the $50 which was delivered to A).
X sincerely (albeit incorrectly) believes that there is oil under
his land. He advises Y of this "fact". X offers to trade his prop-
erty for a particular lot owned by Y. Y accepts. No crime has
occurred. X lacked scienter (i.e., the specific intent to deceive
Y) when he obtained title to the property in question.
• EXAMINATION TIP: The representation must relate to a
material fact, not opinion (`puffing" is insufficient).
• EXAMINATION TIP: The victim's reliance upon the rep-
resentation must cause him to pass title.
• EXAMINATION TIP: The distinguishing characteristic of
false pretense is that title passes (thus giving ownership
to the transferee), even though it is voidable due to
defendant's fraud.
• EXAMINATION TIP: Where money is delivered to the
defendant in a sale or trade situation by the person
defrauded, title generally passes and the crime is false
pretenses. However, where money is exchanged by
cheating at cards or betting, the defrauding party is
receiving possession, not title, so the crime is larceny by
trick.

169 Larceny/False Pretenses
Distinction
Describe the distinction

between larceny and false
pretenses.
poable
t 'MULTISTATE SPECIALIST
169
ANSWER
Larceny is a crime against possession (i.e., the
defendant is not purporting to acquire title to
the item from its owners). False pretenses,
however, is a crime against ownership (i.e.,
the victim intends to part with title to the
property).
EXAMPLES
A is in a store when she views a beautiful pair of shoes.
Since she doesn't possess the required sum of money, A
changes the price tag pertaining to this item from "$122"
to "$22." The cashier at the store overlooks this alter-
ation. A has committed false pretenses, rather than lar-
ceny by trick. The salesperson intended to bestow title to
(rather than mere possession of) the shoes upon A.
A persuades B that he (A) can cure the latter's back
pains by means of a "secret" salve. A sells this substance
to B for $50. Assuming A had no reason to believe that
the salve would remedy B's condition, the crime of false
pretenses has occurred. A obtained title to (rather than
mere possession of) the $50 paid to him.
*EXAMINATION TIP: The fact that the victim

was unusually gullible is not a defense to
false pretenses.

flash cards
170

embezzlement.
pion Ito
170
AN WER
Embezzlement occurs where the defendant fraudu-
lently converts another's personal property at a
time when the chattel was rightfully in the defen-
dant's possession.
EXAMPLES
X, a friend of Y's, requests and is loaned the latter's car for a
personal errand. X subsequently decides to appropriate the
vehicle. An embezzlement (but not a larceny) has occurred.
X converted the car after it was in his possession. If, how-
ever, X had formed the intention of stealing Y's vehicle
when he originally asked to use it, he is guilty of larceny by
trick (i.e., he obtained possession of the auto by fraudulent
means).
X, an employee of Y, opens the latter's safe and withdraws
the monies in it. If Y had previously given the safe's combi-
nation to X, X is guilty of embezzlement (i.e., the funds
were within X's constructive possession). If, however, X sur-
reptitiously obtained the combination, X's actions would
constitute larceny.
Y pawns his watch with X. Later, Sue comes in and (not
knowing the watch belonged to Y) offered $200 to X for
it. X sells it to Sue, sincerely believing that Y would be
happy to receive $50 in lieu of the item. X has committed
embezzlement.
• EXAMINATION TIP: In distinction to larceny,
embezzlement involves misappropriation by a defen-
dant who has lawful possession (as opposed to
custody).
*EXAMINATION TIP: The conversion must amount to
a serious interference with the owner's rights in such
a way as to sell, damage, or withhold the property.
• EXAMINATION TIP: No direct personal gain need
result to the defendant.
• EXAMINATION TIP: The specific fraudulent intent
required may be negated by a claim of right or by an
intent to restore the exact property.
pistbir

171 Robbery

robbery.
posabse
171
ANSA%
Robbery was a common law felony consisting
of all the elements of larceny, plus two addi-
tional elements: (1) the taking must be from
the person or presence of the victim, and
(2) the taking must be accomplished by force,
intimidation, threat or violence.
EXAMPLES
X points a toy gun at Y, and demands the latter's money. Y
realizes the firearm is unreal, but pretends to be frightened.
Y gives $20 to X, who then flees. No robbery has occurred
(i.e., Y did not deliver the money to X out of fear).
Y, a pickpocket, removes X's wallet. If X discovers the loss
later, no robbery has occurred (i.e., the property was not
obtained by force). If however, X becomes aware of Y's
actions and tries to prevent the theft, Y is guilty of robbery
(i.e., fear of the loss of his property had been created in
X's mind).
X knocks Y unconscious during a barroom brawl. He then
notices that Y is wearing a gold watch. X removes the
watch from Y's wrist and leaves. Since X was responsible
for Y's unconscious condition, many courts view X's actions
as robbery (even though he did not have the specific intent
to take Y's watch until after the knockout had occurred).
• EXAMINATION TIP: Larceny, assault and

battery merge into robbery.
• EXAMINATION TIP: The threat or violence
must place the victim in actual fear at the
time of the taking. Note that, as long as the
victim is placed in fear, the fear may be base-
less. In other words, fear and intimidation
based on lies qualify as threats for robbery.
postbite
172 Receiving Stolen Property

receiving stolen property.
potable
172
ANSWER
Receiving stolen property occurs where the defendant
receives (i.e., voluntarily takes into his possession)
goods which he knows, or has reason to believe, have
been stolen, with the specific intention of depriving
(or continuing to deprive) the rightful owner of such
goods.
EXAMPLES
X steals a television set from Y. When the police apprehend X, he
advises them that he was going to sell the item to Z. Desiring to
prosecute Z, the police permit X to proceed with the sale. Since
the police had recovered the television, Z is not guilty of receiv-
ing stolen property.
X, the principal of a "fencing" operation, directs persons with
stolen merchandise to deliver it to a warehouse (which is owned
by a third party). When the illegally obtained items came under
X's control, he was guilty of receiving stolen property.
*EXAMINATION TIP: The receiving of physical posses-

sion of the property, while the most common situa-
tion, is not required, as long as the defendant
exercises control over the goods (such as arranging
for a sale, having the thief place the goods in a desig-
nated place, or receiving the goods from another).
•EXAMINATION TIP: Because the property must actu-
ally be stolen, a frequent exam situation involves
goods which have been recovered by the police for the
true owner. Where the police take formerly stolen, but
now recovered property to a 'fence," the 'fence" is
not receiving stolen property. Also, because the per-
son receiving the property must subjectively know
himself that the goods are stolen, through circum-
stantial evidence the student must sometimes infer
that the property is stolen (as where goods are
obtained through a secret transaction or for an inor-
dinately low price). Thus, the property must be
"stolen" at the time of the receipt, and the receiver
must have knowledge that the property is stolen.
pita/So

173 Accomplice Liability
Describe accomplice
liability.
pmbito
M-LTISTATE SPECIALIST
173
ANSWER
An individual is criminally liable as an accomplice if he
gives assistance or encouragement or fails to act where
he has a legal duty to oppose the crime of another
(actus reus), thus purposefully intending to effectuate
commission of the crime (mens rea). At common law,
the person must have had the intent to help to encour-
age the principal to commit the crime charged.
EXAMPLE
X asks Y to take Z (X's child) out of her (X's) house one after-
noon. While they're away, X murders A. If Y was unaware of
X's purpose, he lacked the specific intent to abet X. If the
prosecution can show that Y desired to assist X, Y is also cul-
pable for the murder of A by X.
• EXAMINATION TIP: The person aided does not have to
be aware of the assistance which he received from
another for the latter to be vicariously culpable.
• EXAMINATION TIP: While the alleged perpetrator of the
crime does not have to have been convicted for "aider
and abettor" culpability to attach, the prosecution must
prove that the target crime was actually committed.
• EXAMINATION TIP: A defendant is responsible for the
criminal acts of another whom he aided, abetted, or
facilitated, provided the criminal consequences are
reasonably foreseeable in terms of the acts defen-
dant intended to aid or abet. In other words, an accom-
plice can be guilty of not only the crimes he personally
performs or encouraged another to perform, but also
for any crimes committed by another that occurred as
the other was in the process of committing the contem-
plated crime.
• EXAMINATION TIP: Withdrawal may be a valid defense
where an accomplice makes a timely repudiation and
takes sufficient steps to neutralize any assistance or
material he has provided before the commission of the
crime can no longer be prevented.
maths*

174 Solicitation

solicitation.
MULTISTATE
174
ANSWER
Solicitation was a common law misdemeanor
consisting of enticing, advising, inciting, induc-
ing, urging, or otherwise encouraging another
to commit a felony or breach of the peace.
EXAMPLES
Loretta thinks that Jim is a wimp. She dares him to do
something "macho" like "pulling off a robbery." When
Jim responds, "I don't know where to buy a gun,"
Loretta retorts, "I knew it, you're a chicken." The next
day, however, Jim finds a pistol and robs a deli. Loretta
is not culpable for Jim's crime. She did not have the
specific intention that Jim commit a crime. She merely
wanted to taunt him.
A sends a letter to X, offering to pay the latter $5,000 to
kill B. Although X is in prison, the letter is forwarded to
him. A solicitation has occurred.
'EXAMINATION TIP: It is not necessary that

the solicitee be capable of committing the
offense.
'EXAMINATION TIP: Solicitation is a lesser
included offense of conspiracy, attempt, and
the target crime itself (i.e., it will ordinarily
merge into any of those crimes).
potable
175 Vicarious Culpability of Solicitors
Describe when one is

vicariously culpable for
the crimes committed by a
solicitee.
est ,
175
ANSWER
One who solicits a crime is ordinarily culpable
for (1) the offense solicited, and (2) any crimes
which were a reasonably foreseeable out-
growth of the solicited offense. However,
where the solicitor communicates a renuncia-
tion to the solicitee prior to the time that per-
petration of the solicited crime is irreversible,
he is not vicariously culpable for the solicitee's
subsequent acts.
EXAMPLE
X knows that Y hates Z. X advises Y that (1) Z has
vacated his (Z's) home for the weekend, and (2) this
would be an advantageous time to steal Z's television.
X also mentions that Z keeps a spare key under the mat
of his back door. Y utilizes the key to gain entrance into
Z's home. However, Z unexpectedly returns to find Y
removing the television. A fight ensues, and Y kills Z.
X would probably be vicariously culpable for Y's homi-
cide. It is (arguably) reasonably foreseeable that any time
one burglarizes another's home, the possibility exists that
the latter might return and violence could ensue.
•EXAMINATION TIP: In a few states, one who

solicits the commission of a crime is culpable
only for the crime actually solicited.
pan ar.

176 Conspiracy

conspiracy.
piwbv
176
NSWER
A conspiracy occurs where there is an actual agreement
amongst two or more persons, for the purpose (i.e.,
with the specific intention) of committing an illegal act
or a legal act by illegal means. (Modernly, some states
require an overt act by one of the coconspirators in fur-
therance of the conspiracy.)
EXAMPLES
X and Y "agree" to rob a bank together. However, Y is an
undercover police officer. No conspiracy has occurred. There
was no actual agreement between X and Y.
X says to Y, "Let's rob the XYZ Bank." Y, confident that X is
joking, responds, "OK." Suddenly, X pulls out two guns. Y
now realizes that X is serious, but accompanies X to the Bank
because he fears that X might harm him (Y) if he fails to do so.
No conspiracy has occurred. There was no actual agreement
between X and Y to rob the Bank.
• EXAMINATION TIP: A defendant cannot be convicted
of conspiracy when all other persons with whom he
could have conspired have been acquitted. It is not nec-
essary, however, for the prosecution to charge all possi-
ble conspirators at one time.
• EXAMINATION TIP: Co - conspirators need not know
the exact identity of all persons involved. All that is nec-
essary is that one of them have agreed to accomplish the
function or activity which was performed by the party
whose identity is unknown to the other conspirators.
• EXAMINATION TIP: Unlike attempt, conspiracy is a
separate and distinct offense that does not merge upon
completion of the target crime, because criminal combi-
nations are deemed to be dangerous apart from the
underlying crime itself
• EXAMINATION TIP: Each co-conspirator is liable for
the crimes of all the other co-conspirators where the
crimes were both a foreseeable outgrowth of the conspir-
acy and were committed in furtherance of the conspira-
torial goal.
pink.*
177 "Chain" or "Hub and Spoke"
Conspiracy

between a "chain"
conspiracy and a "hub and
spoke" conspiracy.
Ito
177
ANSWER
In a "chain" relationship where several crimes
are committed under one large scheme in
which each member knows generally of the
other parties' participation and there exists a
community of interest, one single conspiracy
results.
Alternatively, in the so-called "hub-and-spoke"
relationship, where one common member
enters into agreements to commit a series of
independent crimes with different individuals,
multiple conspiracies exist.
EXAMPLES
X, who is a drug dealer, conspires with ten students at
different colleges to sell drugs there. This would be a
hub and spoke conspiracy.
X, who is a professional thief, conspires with Y and Z to
steal from a jewelry store. The three meet and delegate
their roles: X will disarm the security system, Y will take
the jewels, and Z will drive the getaway car. This would
be a chain conspiracy.
flash cards
178 Withdrawal Defense (Conspiracy)
In the context of
conspiracy, describe the
defense of withdrawal.
MULTISTATE
178
ANSWER
At common law, withdrawal was not recog-
nized as a valid defense to conspiracy because
the conspiracy was complete as soon as the
parties agreed to commit the crime. Under the
Model Penal Code, however, withdrawal by a
co-conspirator may be a valid affirmative
defense where the renouncing party gives
timely notice of his plans to all members of
the conspiracy and performs an affirmative act
to thwart the success of the conspiracy.
EXAMPLE
X, Y and Z arrive at Bill's home with the intention of
burglarizing the premises. X, after hearing a police siren
in the background, advises Y and Z that (1) he is with-
drawing from the conspiracy, and (2) they should abort
their plan. Nevertheless, Y and Z proceed. X is culpable
for the subsequent burglary.
*EXAMINATION TIP: A successful withdrawal

does not avoid prosecution for conspiracy.
It merely exculpates an individual from
crimes subsequently committed by the other
conspirators.
po table
179 Vicarious Culpability of
Co-Conspirators
Describe when one is

vicariously culpable for the
acts of a co-conspirator.
179
ANSWER
A conspirator is culpable for the criminal acts
of a co-conspirator which (1) occur in the
course of the conspiracy, or (2) are a reason-
ably foreseeable outgrowth of the conspiracy.
A conspiracy is deemed to have been con-
cluded when all of the conspiratorial objec-
tives have been accomplished.
EXAMPLES
X owns a warehouse filled with expensive furniture. She
and Y agree that (1) she will give Y a key to the struc-
ture, (2) Y will "steal" the furniture, and (3) they will
divide the insurance proceeds. However, Y trips an
alarm. When Y flees (at speeds reaching 95 m.p.h.), a
pursuing police car collides with a telephone pole —
resulting in a police officer's death. X is arguably culpa-
ble for Y's homicide. It is reasonably foreseeable that
police will respond to an apparent burglary and that an
officer could be killed in an ensuing high speed chase.
X and Y agree to rob a bank and meet later at Y's home
to divide the proceeds. After the armed robbery, while
on his way to Y's home, X is seen by a policeman. To
avoid capture, X wounds the officer. Y is probably culpa-
ble for X's actions. Since the proceeds had not been
divided, the conspiracy was still extant. It was (arguably)
reasonably foreseeable that X might use force to avoid
capture (i.e., X was sufficiently violent to rob a bank).
possbP
180 Attempt

attempt.
potable
180
ANSWER
An attempt occurs where (1) the defendant has
deliberately engaged in conduct for the spe-
cific purpose of perpetrating a crime (i.e., the
target offense), and (2) such conduct repre-
sents a substantial step (rather than mere
preparation) toward culmination of the target
crime.
EXAMPLES
As a joke, X points a toy gun at Y and demands the lat-
ter's wallet. As Y (who believes X is serious) flees, he is
hit by a vehicle driven by Z. X is not guilty of attempted
robbery. He did not approach Y with the specific inten-
tion of committing a crime.
X decides to kill Y. He (X) arms himself and drives
around looking for Y. X is probably not guilty of
attempted murder. He has not taken a substantial step
toward the actual murder of Y. If X saw Y and began to
advance toward him (Y), a prosecution for attempt
should be successful.
• EXAMINATION TIP: Once an attempt has

been made, it cannot be repudiated. X, with
the intention of killing Y, points his loaded
gun at the latter, but then changes his mind.
X could be convicted of attempted murder.
• EXAMINATION TIP: Once the target crime is
committed, the attempt merges into the target
crime.
'Darn ht.
181
Describe the defenses to

attempt.
181
ANSWER
There are several defenses to attempt.
(1) Abandonment. At common law, abandon-
ment is no defense to attempt once the attempt
is complete. Under the Model Penal Code,
however, a voluntary and complete abandon-
ment can operate as an affirmative defense of
renunciation.
(2) Legal Impossibility. Legal impossibility is
traditionally regarded as a defense to attempt
and involves the situation where the defendant
did all those things he intended to do, but these
acts did not constitute a crime.
(3) Factual Impossibility. Factual impossibility
(where the defendant intends a criminal act but
cannot accomplish it because of facts unknown
to him at the time of the act) is no defense to
attempt.
(4) Inherent Impossibility. Where a defendant
uses means that a reasonable person would
view as being extremely inadequate to fulfill the
requisite criminal act, inherent impossibility may
be used as a valid defense to attempt.
EXAMPLE
X agrees with his friends, Y and Z, to rob a bank. He
walks into the bank with them, holds a gun into the
teller's face, and asks the teller for all the money in the
safe. When he sees the look of terror on the teller's face,
he decides not to rob the bank, saying, "Sorry, I didn't
mean to scare you." He flees. X will still be guilty of
attempted robbery.
Pillaline
MUTISTATE
L SPECIALIST flash cards
182 Merger Doctrine
Describe the merger

doctrine.
posabie
182
ANSWER
Lesser included offenses will ordinarily merge
into a conviction for a greater offense. How-
ever, the Double Jeopardy doctrine does not
preclude conviction for lesser included crimes.
A sovereign may expressly mandate punish-
ment for both the lesser and greater included
offenses (Missouri v. Hunter).
EXAMPLES
X is convicted of (1) possession of an illegal substance,
and (2) possession of an illegal substance with intent to
distribute it for sale. If convicted of the latter, a greater
included crime, culpability for the former offense will
ordinarily be merged into the conviction.
X is convicted of both larceny and robbery. Ordinarily,
larceny merges into a conviction for robbery. However,
if the applicable sovereign (i.e., a state or the federal
government) has enacted legislation which explicitly
authorizes punishment upon conviction of both crimes,
no merger would occur.
•EXAMINATION TIP: Solicitation merges into a

conviction for (1) conspiracy, or (2) the com-
pleted crime (where the solicitor is culpable
for an offense committed by the solicitee). An
attempt merges into a conviction for the com-
pleted crime. Larceny, assault, and battery
merge into robbery. However, conspiracy
does not merge into a conviction for the tar-
get crime.
IMULTISTATE
. flash cards
SPECIALIST
183 Factual/Legal impossibility
Distinction
Describe the distinction

between factual and legal
impossibility.
183
ANSWER
Legal impossibility is commonly defined as the
case in which the defendant did everything he
intended to do but yet this would not consti-
tute a crime. On the other hand, factual impos-
sibility is where the defendant did all of the
things he intended to do but it was impossible
to commit the criminal act.
EXAMPLES
X shoots Y while the latter appears to be sleeping. In
fact, Y had died prior to X's shot. According to the
majority view, X is guilty of attempted murder. This is an
example of factual impossibility. At common law, factual
impossibility is no defense to the inchoate crime of
attempt.
X believes that deer hunting is illegal. Nevertheless, he
surreptitiously goes into the forest and "bags" one of
these animals. If deer hunting is legal, X has committed
no crime under the common law view.
Other examples of factual impossibility are (1) defendant
engages in non-consensual sexual intercourse with a
dead person; (2) defendant is smoking what he believes
to be marijuana, but was puffing on an innocuous weed;
(3) defendant attempts to steal money from an empty
pocket; and (4) defendant attempts to shoot and kill vic-
tim who is outside the range of the weapon.
•EXAMINATION TIP: The issue of factual

impossibility ordinarily occurs in the context
of an attempt crime.
t „ilr
184 Voluntary Intoxication
Describe when voluntary

intoxication operates
to prevent successful
prosecution of a specific
intent crime.
Zy
plosbv
184
S NV IF R
Voluntary intoxication is a defense to a crime if it
negates the existence of an element of the crime.
EXAMPLES
X, while at Y's party, put a cigarette tray belonging to Y into his
pocket and left. When charged with larceny, X contends that he
was too intoxicated to recognize that the item belonged to Y
(i.e., he lacked the specific intention to permanently deprive Y
of the item). If the factfinder accepts X's explanation. X cannot
be convicted of larceny.
X got drunk at a party. While driving home, he struck and
killed V. X might be culpable of second degree murder. Even if
he lacked the specific intention to kill or seriously injure
another, his conduct was arguably wanton (i.e., operating a car
while in an inebriated condition arguably disregards a known,
"substantial risk" of serious harm to others). If X's conduct was
not viewed as being wanton, it might be considered reckless
(i.e., criminally negligent). In this event, X is guilty of involun-
tary manslaughter
• EXAMINATION TIP: It is important to note

that intoxication cannot negate a "general
intent" crime. Why? Because 'general intent"
crimes (e.g., rape and battery) do not require a
defendant to specifically intend to commit an
unlawful act or produce a specified result that
can be negated by intoxication. Thus, voluntary
intoxication cannot, according to the weight of
authority, be a defense to battery where defen-
dant recklessly strikes the victim because reck-
lessness cannot be negated by intoxication.
Furthermore, voluntary intoxication can reduce
first degree intent to kill murder (specific intent)
to second degree murder by negating premedita-
tion and deliberation, but cannot be used to
negate a general criminal intent to reduce mur-
der to manslaughter.
pitsbie

1 85 Involuntary Intoxication
Describe involuntary
intoxication and how it
operates as a defense to
criminal culpability.
pmbie
185
ANSWER
Intoxication is involuntary where the defen-
dant (1) didn't know, or should not have
known, that ingesting the substance in ques-
tion would result in intoxication, or (2) was
compelled to ingest the intoxicating substance
under duress. Where, as a consequence of
becoming involuntarily intoxicated, the effect
upon the defendant is the same as insanity
(i.e., he cannot understand the nature of his
acts or that they are morally wrong), he is
excused from culpability for his crime.
EXAMPLES
Unknown to X, he had an unusual susceptibility to
alcohol. As a consequence of drinking two beers, he
began to swing his fists wildly (hitting two persons). If X
did not understand the nature of his acts (i.e., that he
was punching human beings), he has no criminal culpa-
bility to the persons he injured.
X and Y are friends of Z. They taunt the latter, saying
"He's never had a drink in his life." Z responds by
quickly "downing" three shots of scotch. Z then becomes
wild and punches three persons. Z's intoxication was
voluntary (i.e., the taunts of friends do not constitute
sufficient coercion to make Z's drinking involuntary).
Since battery is a general intent crime (i.e., one is culpa-
ble if he recklessly caused an offensive impact upon
another), Z is guilty of this offense.

flash cards

186 M'Naghten
Describe the M'Naghten

test for insanity.
psbio
186
ANSWER
Under the M'Naghten test, a defendant is
relieved of criminal responsibility upon proof
that at the time of commission of the act, he
was laboring under such a defect of reason
from a disease of the mind, as not to know the
nature and quality of the act he was doing, or,
if he did know it, he did not know that what
he was doing was wrong.
EXAMPLE
X believes that Y is stalking him. One day, he sees Y
coming toward him on the sidewalk. Seeing Y reach into
her bag, X believes that Y is going to kill him with a gun
that he imagines is in there. In fact, Y does not have a
gun, and X is merely suffering from acute paranoia. If X
shoots Y, he can probably claim insanity.
• EXAMINATION TIP: "Disease of the mind"

includes all mental abnormalities, but not a
psychopathic personality.
• EXAMINATION TIP: The M'Naghten test is the

majority rule.
pinky&
187
Describe the irresistible

impulse test for insanity.
187
ANSWER
Under the "irresistible impulse" test, a defen-
dant will be found not guilty where he had a
mental disease which keeps him from con-
trolling his conduct.
EXAMPLE
X is a serial peeper. Over and over again, he finds him-
self driven to look into the windows of women's homes
while they undress. Although he tries to control himself,
he finds that he cannot. If X is arrested, he can probably
claim the defense of insanity.
•EXAMINATION TIP: In almost half of the

jurisdictions following the M'Naghten test,
the "irresistible impulse" test has also been
adopted such that if a defendant is found to
meet the requirements of either test, he will
be found insane.
MULTISTATESPECIALIST flash cards

188 Durham Test
Describe the Durham test

for insanity.
gossibito
tAftILTISTATE SPECIALIST
188
ANSWER
Under the Durham rule, or the "product" rule,
a defendant is not criminally responsible if his
unlawful act was the product of mental
disease or defect. A crime is a product of a
mental disease if it would not have been com-
mitted "but for" the defect or disease.
EXAMPLE
X is schizophrenic. He hears voices telling him to kill
people. One day, in response to an order from the
voices, he kills his entire family. X can probably claim
insanity as a defense to murder.
•EXAMINATION TIP: The Durham test has

been criticized as being overly broad.
"' MULTISTATE SPECIALIST

flash cards
189 substantial Capacity Test
Describe the substantial

capacity test for insanity.
pimbit•
1 89
ANSWER
Under the substantial capacity test, a person is
not responsible for criminal conduct if, at the
time of such conduct, as a result of mental dis-
ease or defect, he lacked substantial capacity
to appreciate the criminality (wrongfulness) of
his conduct, or to conform his conduct, to the
requirements of law. Developed by the Ameri-
can Law Institute (A.L.I.), this test combines
the M'Naghten and the irresistible impulse
tests.
• EXAMINATION TIP: Note that this test con-

siders both a cognitive and a volitional
capacity.
pmbv

190 Diminished Capacity
Describe the defense of

diminished capacity.
plight*
19 0
ANSWER
Some jurisdictions allow the defense of dimin-
ished capacity, which is short of insanity, to
prove that as a result of a mental defect the
defendant did not have a state of mind that is
an element of the offense. When a defendant
pleads diminished capacity, the defense is
used to negate a specific mental state required
for the particular crime.
EXAMPLE
X is developmentally disabled. One day, he kills a puppy
while trying to play with it. He thinks that he is just
rolling the puppy in the grass, when in fact he is crush-
ing it. If X is charged with cruelty to animals, he can
probably plead diminished capacity as a defense.
•EXAMINATION TIP: In negating the premedi-

tation and deliberation requirement of first
degree murder, the defense of diminished
capacity can mitigate murder to voluntary
manslaughter by negating the element of
malice.

191 Self-Defense

self-defense.
MULTISTATE
191
ANSWER
If a person has a reasonable belief that he is in
imminent danger of unlawful bodily harm, he
may use that amount of force that is reason-
ably necessary to prevent such harm, unless
he is the aggressor. An aggressor is one who
strikes the first blow or commits a crime
against the victim. The aggressor can regain
the right of self-defense in either of two ways:
(1) upon complete withdrawal perceived by
the other party, or (2) escalation of force by
the victim of the initial aggression.
EXAMPLE
X starts a fight in a bar over who is better, the Giants
or the Angels. Y is a huge Angels fan. X strikes Y in
the nose, and Y pulls his fist back to hit X, a Giants
fan, in the stomach. X cannot strike Y again and claim
self-defense.
• EXAMINATION TIP: Deadly force is that

which threatens death or serious bodily
harm. Non-deadly force threatens only bod-
ily harm.
• EXAMINATION TIP: The majority view is that
there is no duty to retreat. In jurisdictions
that do follow a retreat rule, one need not
retreat unless it can be done in complete
safety, and retreat need not be made in one's
home.
poselpir
MU LTISTATE
-
SPECIALIST flash cards
192 Mistake of Fact/Mistake of Law

between mistake of fact
and mistake of law.
, MULTISTATE SPECIALIST
192
ANSWER
Mistake of fact is a defense that negates the exis-
tence of a mental state required to establish a mate-
rial element of the crime. In other words, there
would be no crime if the facts were such as defen-
dant thought them to be. Mistake of law, on the
other hand, occurs where the defendant is unaware
that his acts are criminally proscribed. Such igno-
rance of the law is generally no defense. However,
where some element of a crime involves knowledge
or awareness by the defendant, a mistake of law as
to this element may provide a valid defense.
• EXAMINATION TIP: To negate the existence of a

general intent, a mistake of fact must be rea-
sonable to the extent that under the circum-
stances a reasonable person would have made
that type of mistake. On the other hand, to negate
the existence of a specific intent, a mistake of fact
need not be reasonable. It may be unreasonable,
provided it is honest.
• EXAMINATION TIP: Mistake of law is a valid
defense where a statute proscribing the defen-
dant's conduct has not been reasonably made
available, or where the defendant has reasonably
relied on a statute or judicial decision that is later
overruled or declared unconstitutional.
• EXAMINATION TIP: Mistake of law is also a valid
defense where a defendant relies in good faith
upon an erroneous official statement of law con-
tained in an administrative order or in an official
interpretation by a public officer or department.
pssahe
193 Criminal Assault
Describe a criminal
assault.
posabv
/ MULTISTATE SPECIALIST
193
ANSWER
There are two types of criminal assault:
attempt-to-commit-a-battery assault, and
intentional-creation-of-imminent-fear-of-harm
assault. In attempted-battery type of assault,
some jurisdictions require not only that the
defendant attempt to commit a battery, but
that he have the present ability to accomplish
the commission of the battery. In intentional-
creation-of-imminent-fear-of-harm assault, the
defendant must act with threatening conduct
(mere words are insufficient) intended to
cause reasonable apprehension of imminent
harm in the victim. A conditional threat is gen-
erally insufficient, unless accompanied by an
overt act to accomplish the threat.
EXAMPLE
X tells Y, a teenaged girl, that he is going to hit her. Y is
terrified and agrees to give up her seat on the bus if he
will not hit her. X is guilty of assault.
•EXAMINATION TIP: Assault was a common

law misdemeanor.
pmbie
dMULTISTATE SPECIALIST flash cards
194 Criminal Battery
Describe a criminal
battery.
MULTISTATE
194
ANSWER
Criminal battery is defined as the unlawful
application of force to the person of another
which results in bodily harm or offensive
touching. Criminal battery is a general intent
crime; a defendant may be guilty of battery
where he (or she) acts (1) recklessly, (2) negli-
gently or (3) with knowledge that his/her act
(omission) will result in criminal liability.
• EXAMINATION TIP: Battery was a common

law misdemeanor.
• EXAMINATION TIP: Common defenses to

criminal battery include self-defense, defense
of others, and crime prevention. Consent is
only a defense where it was not coerced or
obtained by fraud.
• EXAMINATION TIP: Where the defendant

puts a force in motion, the force need not be
applied directly. For example, if Angus tells
his attack dog to charge at a visitor, Angus
may be guilty of battery even though he did
not personally touch the visitor.
pirstabite
195 Mayhem

mayhem.
posibie
19 5
ANSWER
The felony of mayhem at common law
required an intent to maim or do bodily injury
by an act that either (1) dismembered the vic-
tim or (2) disabled his use of some bodily part
that was useful in fighting. Modernly, statutes
have expanded the scope of mayhem to
include permanent disfigurement.
EXAMPLE
X attacks Y and disables his legs. Although the legs are
not cut off, they become useless to Y, who is rendered a
paraplegic. X is guilty of mayhem.
•EXAMINATION TIP: In states that have abol-

ished mayhem, it is treated as a form of
aggravated battery.
pitstsbire
196 Kidnapping

kidnapping.
potable
196
ANSWER
At common law, kidnapping consisted of: an
unlawful restraint (1) of a person's liberty
(2) by force or show of force (3) so as to send
the victim into another country.
EXAMPLE
X grabs Y, a corporate executive; and holds a gun to his
head. He forces Y to fly him on Y's corporate plane to
Afghanistan, where he then releases Y for a large ran-
som. X is guilty of kidnapping.
•EXAMINATION TIP: Under modern statutory

law, it usually suffices that the victim be
taken to another location (as opposed to into
another country, as required at common law
or concealed. Note that the MBE follows
modern law, not common law, with
respect to this element.
p..slw
I MULTISTATE SPECIALIST flash cards
197 Duress

duress.
piniebto
197
ANSWER
The defense of duress justifies criminal con-
duct where the defendant reasonably believes
that the only way to avoid unlawful threats of
great bodily harm or imminent death is to
engage in conduct proscribed by law.
EXAMPLES
X is advised that, unless she gives Y the combination to
her employer's safe, he will kidnap the latter's 5-year old
daughter. Since Y's child is not threatened with imminent
harm (X's threatened action will occur in the future),
duress could not be successfully asserted.
X and Y agree to rob the ABC Bank. While driving there,
X tells Y that he has "cold feet" and wants to be let out
of the car. In response, Y points a gun at X and says, "If
you leave now, I'll kill you." X, sincerely believing Y's
threat, commits the robbery. X could not successfully
assert duress as a defense. His agreement to assist in the
robbery was responsible for being subject to Y's duress.
• EXAMINATION TIP: For the defense of duress

to apply, the defendant must possess a rea-
sonable belief that the threat will be carried
out.
• EXAMINATION TIP: Duress, or coercion, is

not available as a defense to murder.
pistiw
198 Defenses: Entrapment
When is entrapment a
defense?
MULTISTATE
19 8
ANSWER
Entrapment is only a defense when the origin
of intent was in the police. In most jurisdic-
tions, if the defendant was personally predis-
posed to commit the crime, entrapment is not
a defense.
EXAMPLE
Polly is a high-priced prostitute who caters to very
wealthy men in the capital of the state of Euphoria. In an
attempt to catch her in the act, Harvey, a police officer,
poses as a customer and asks her to perform a sexual act
for money. If Polly performs the act, she can be prose-
cuted for prostitution and cannot raise entrapment as a
defense because she was predisposed to prostitution.
AO" PRP
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PMBR Flash Cards - Criminal Law - 2007

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Describe a specific intent

• EXAMINATION TIP: Specific intent may be

• EXAMINATION 1' P: The following are specific

Describe a general intent

*EXAMINATION TIP: Criminal negligence

•EXAMINATION TIP: The following are gen-

•EXAMINATION TIP: The following are mali-

Describe a strict liability

XAMINATION TIP: A reasonable mistake of

• EXAMINATION TIP: Strict liability statutes

• EXAMINATION TIP: The following are strict

Describe when non-action

•EXAMINATION TIP: These same situations give rise to a

Describe the requirements

•EXAMINATION TIP: The mens rea and actus

Describe the difference

Describe the various mens

•EXAMINATION TIP: Remember that intent

Describe intent to kill

• EXAMINATION TIP: Under the "deadly

• EXAMINATION TIP: Intent to kill murder is a

Describe intent to commit

•EXAMINATION TIP: Intent to commit serious

Describe depraved heart

• EXAMINATION TIP: Depraved heart murder

• EXAMINATION TIP: Unlike involuntary

Describe the felony-

• EXAMINATION TIP: Since a criminal is "in

Describe the statutory

• EXAMINA'FION TIP: If the murderer does any

Describe the statutory

•EXAMINATION TIP: Remember that, at com-

Describe the circumstances

Describe the crime of

• EXAMINATION TIP: A husband can be culpa-

Describe the crime of

*EXAMINATION TIP: A defendant's mistake

Describe the crime of

• EXAMINATION P: A "breaking" occurs when-

Describe the "entry"

• EXAMINATION TIP: Breaking into a truck or

Describe the crime of

• EXAMINATION TIP: The burning element is

Describe the crime of

• EXAMINATION TIP: One can commit a

• EXAMINATION TIP: A minor employee who

Describe the "intent to

Describe the crime of

Describe the crime of

MULTISTATE SPECIALIST flash cards

Describe the distinction

*EXAMINATION TIP: The fact that the victim

Describe the crime of

Describe the crime of

• EXAMINATION TIP: Larceny, assault and

Describe the crime of

*EXAMINATION TIP: The receiving of physical posses-

Describe the crime of

'EXAMINATION TIP: It is not necessary that

Describe when one is

•EXAMINATION TIP: In a few states, one who

Describe the crime of